Citation Nr: 0025148
Decision Date: 09/21/00 Archive Date: 09/27/00
DOCKET NO. 97-30 671 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office and Insurance
Center in St. Paul, Minnesota
THE ISSUE
Entitlement to an increased rating for residuals of chip
fracture of the left great toe, currently assigned a 10
percent disability evaluation.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
P. H. Mathis, Counsel
INTRODUCTION
The veteran had active service from November 1967 to July
1970. By a rating decision in November 1970, the Department
of Veterans Affairs (VA) Regional Office (RO) in St. Paul,
Minnesota, granted service connection for residuals of a chip
fracture of the left great toe, assigning a noncompensable
disability evaluation from July 3, 1970, which was the day
after the veteran's release from active service. This appeal
is from a decision by the RO in October 1996 which increased
the disability rating from noncompensable to a 10 percent
disability rating, effective in June 1996 based on receipt of
the veteran's claim for an increased rating at that time.
The Board notes that the veteran filed a claim for service
connection for post-traumatic stress disorder (PTSD) in June
1998. By a rating action in October 1998, the claim was
denied. In April 1999, the veteran forwarded VA Form 21-4138
to the RO in which he requested reconsideration of the
decision denying service connection for PTSD; arguing that
his examinations by VA regarding the claim had been
inadequate. The RO afforded the veteran another psychiatric
examination in July 1999. In a rating decision of August
1999, the RO noted that the examiner had concluded that the
veteran did not have PTSD and denied the claim in the absence
of a confirmed diagnosis of PTSD. The RO notified the
veteran of the decision that month, but he did not appeal the
decision. An appeal consists of a timely filed notice of
disagreement in writing and, after a statement of the case
has been furnished, a timely filed substantive appeal. 38
U.S.C.A. 7105; 38 C.F.R. 20.200 (1999). The RO did exactly
what the veteran requested in his statement of April 1999.
It is clear that the VA Form 21-4138 from the veteran is not
a notice of disagreement and the matter is not currently on
appeal.
FINDINGS OF FACT
1. All relevant evidence has been obtained to rate the
service-connected residuals of chip fracture of the left
great toe.
2. The service-connected residuals of chip fracture of the
left great toe produce no more than moderate disability.
CONCLUSION OF LAW
The schedular criteria for a rating in excess of 10 percent
for residuals of chip fracture of the left great toe have not
been met or approximated. 38 U.S.C.A. §§ 1155, 5107;
38 C.F.R. § 4.71a, Diagnostic Code 5284 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
On VA orthopedic examination in September 1996, the veteran
reported that in 1969 he was thrown off of a tank when the
tank hit a booby trap and that he injured his left great toe.
He described the injury as a chip fracture of the left great
toe which was treated with bandages and conservative
treatment. He had no surgery and was back on duty about a
week after the injury. The veteran complained of left toe
discomfort, especially if he did a lot of activity. In the
recorded medical history it was noted that the veteran had
developed neuropathy of his feet [due to diabetes] which had
subsequently caused him to not sense his left toe discomfort
as much. The veteran stated that he had difficulty flexing
his left great toe ever since the injury. He described the
discomfort as a toothache-type pain in his toe. He stated
that he could walk fairly well, but did have discomfort if he
does a lot of activity, especially at the end of the day.
On physical examination, the veteran walked with a limp
favoring his left leg. The left toe appeared normal. The
examiner commented that there might be some slight
calcification of the left first metatarsophalangeal joint.
The veteran's vibratory sense and proprioception were normal.
He did have somewhat diminished sharp-to-dull sensation in
the left leg compared to the right one. The veteran had
difficulty walking on his toes and heels. The difficulty
seemed to be more of a balance problem than an obvious
weakness problem, however. There was some mild tenderness
with extension and flexion of the toe. The range of motion
of the left toe was slightly diminished in flexion to
approximately 20 degrees, and in extension to approximately
10 degrees. The veteran, however, did have fairly normal
motor strength in the left foot. The assessment was history
of left great toe chip fracture. The examiner elaborated
that the veteran's biggest complaint was decreased flexion
and discomfort in the left toe. However, the neuropathy of
both feet and legs, resulted in less pain and discomfort in
the left great toe. He basically had discomfort in the left
toe at the end of a day with a lot of activity. X-rays of
the left foot revealed that the bones of the feet appeared
intact. There was a history of a prior chip fracture of the
great toe, but no definite fracture was identified on X-rays.
It was the examiner's impression that the veteran has only
mild, if any, problems due to his left great toe injury. The
final impression was no evidence of fracture or dislocation.
By rating decision in October 1996, the RO increased the
rating for residuals of chip fracture of the left great toe
from noncompensable to 10 percent under Diagnostic Code 5284.
When the veteran was examined by the VA in July 1999, his
medical treatment file and claims file, including his
military records, were reviewed by the examiner. The veteran
was asked whether pain could significantly limit his
functional ability, whether there was limitation of motion
due to pain on use, the degree of additional range of motion
loss due to pain on use, and whether there was excess
fatigability or incoordination noted. The veteran's
responses were that pain did significantly limit his
functional ability. He had loss of range of motion because
of pain. He thought there was a 40 to 50 percent loss of
range of motion due to pain and claimed that he had
fatigability and loss of coordination. He was queried
regarding pain. The pain was there and was constant and
severe. He reported that it was aggravated by walking and
was alleviated by a hot tub. The veteran stated that his
left toe did not bend. His balance was poor due to the
neuropathy.
On physical examination, the veteran walked with a moderate
right limp. Otherwise his posture, gait, station and
carriage were normal. Range of motion of the left
metatarsophalangeal joint was 0 to 25 degrees. Range of
motion of the interphalangeal joint was 0 to 10 degrees.
Ranges of motion reported were the same both actively and
passively. The veteran complained of pain on both flexion
and extension of the metatarsophalangeal and the
interphalangeal joint of the left great toe. There was
diffuse tenderness to pressure over the left great toe.
There was no lower extremity atrophy. He complained of left
foot pain walking on his tiptoes. He was unstable walking on
the heels. He walked on the lateral edges of the feet
normally. He complained of left pain while walking on the
medial edges of the feet. He was unable to perform heel-to-
toe walking. The diagnoses were status post chip fracture of
the left great toe, interphalangeal joint with residual loss
of motion of the left great toe metatarsophalangeal and
interphalangeal joints. An X-ray of the left great toe
revealed a tiny ossific opacity projecting over the medial
interphalangeal joint space which could be degenerative in
nature. There was also minimal narrowing of the
metatarsophalangeal joint. The impression was minimal
degenerative change.
Analysis
Initially, the Board finds that the appellant's claim for
increased compensation is "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a), in that he has presented a claim
which is plausible. In the context of a claim for an
increased evaluation of a condition adjudicated service
connected, an assertion by a claimant that the condition has
worsened is sufficient to state a plausible, well-grounded
claim. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
Accordingly, the Board must examine the record and determine
whether the VA has any further obligation to assist in the
development of his claim. 38 U.S.C.A. § 5107(a). The record
is devoid of any indication that there are other records
available which should be obtained. Therefore, no further
development is required in order to comply with the duty to
assist mandated by 38 U.S.C.A. § 5107(a).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the current level of disability is of primary concern.
Although the recorded history of a disability is significant
for an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41
(1999), the regulations do not give past medical reports
precedence over current findings. Francisco v. Brown, 7 Vet.
App. 55, 58 (1994).
Disability evaluations are based on the comparison of
clinical findings with the relevant schedular criteria in the
Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise the lower rating will be
assigned. 38 C.F.R. § 4.7 (1999).
Under Diagnostic Code 5284, a 20 percent evaluation will be
assigned where the residuals of foot injury are moderately
severe. A moderate level of disability will be evaluated as
10 percent disabling.
When examined in 1996 the veteran reported pain in the left
great toe, and he walked with a limp. He also had mild
tenderness with extension and flexion of the toe and the
range of motion of the toe was slightly diminished. However,
there was fairly normal motor strength. Furthermore, he had
neuropathy, apparently the result of untreated diabetes,
which diminishes the amount of pain experienced by the
veteran. On the more recent examination in July 1999, the
veteran claimed severe pain in the left great toe which was
aggravated by walking and alleviated by soaking in a hot tub.
Other than a moderate limp, the veteran's gait was normal.
While walking on his tiptoes, he complained of left foot
pain. X-rays demonstrated minimal degenerative change. The
X-rays did not reveal malunion or nonunion of tarsal or
metatarsal bones.
Although the veteran's disability involves only one toe, the
Board has examined whether the veteran is entitled to a
higher disability rating under any of the criteria used to
rate disabilities of the entire foot, as the RO has done.
Considering potentially applicable rating criteria, he would
only be entitled to a higher disability rating if he has
disability tantamount to unilateral claw foot with all toes
tending to dorsiflexion, limitation of dorsiflexion at the
ankle to a right angle, shortened plantar fascia, and marked
tenderness under the metatarsal heads, warranting a 20
percent evaluation under Diagnostic Code 5278. Also, when
there is moderately severe malunion or nonunion of tarsal or
metatarsal bones, a 20 percent evaluation is warranted under
Diagnostic Code 5283. As noted, a moderately severe foot
injury is the requirement for a 20 percent evaluation under
Diagnostic Code 5284. When there is X-ray evidence of
degenerative arthritis with involvement of 2 or more minor
joint groups the criteria for a 10 percent evaluation are met
under Diagnostic Code 5003. When there is X-ray evidence of
degenerative arthritis with involvement of 2 or more minor
joint groups with occasional incapacitating exacerbations the
criteria for a 20 percent evaluation under Diagnostic Code
5003 are met. 38 C.F.R. § 4.71a (1999).
As stated above, the criteria for rating foot injuries allow
for a 10 percent rating when there is a "moderate"
disability. See Diagnostic Code 5284. The term "moderate"
is not defined by regulation. However, the overall
regulatory scheme relating to the feet and toes contemplates
10 percent ratings in cases where problems include such
difficulties as great toe dorsiflexed, some limitation of
dorsiflexion at the ankle, and definite tenderness under
metatarsal heads. See Diagnostic Code 5278 (1999).
While the veteran does have some pain and tenderness in the
left great toe, the disability reported does not constitute a
foot disability of a moderately severe nature. In the
judgment of the Board, the pain and limitation of function
affecting the left great toe beyond that reflected by the
measured limitation of motion in the affected joint is
adequately compensated by the 10 percent evaluation for
disability of the left foot. The Board finds that, while the
term "moderate" is not defined, when compared with other
comparable ratings for the feet, this term may be understood
to contemplate the type of problems currently experienced by
the veteran. Consequently, no more than a 10 percent rating
is warranted for the veteran's left great toe disability
under Diagnostic Code 5284. See 38 U.S.C.A. §§ 1110, 5107
(West 1991).
In summary, whether evaluating the veteran's disability under
Diagnostic Code 5284, 5278, 5283, or 5003, a greater rating
is not warranted. Specifically, under Diagnostic Code 5284,
the record on appeal does not show that the veteran has
"moderately severe" foot impairment. While the term
"moderately severe" is not defined by regulation, when
compared with other comparable ratings for the feet, this
term must be understood to require more than the type of
problems experienced by the veteran. Even a disability that
involves amputation of the great toe, without metatarsal
involvement, only warrants the assignment of a 10 percent
rating, and amputation of any of the other toes, without
metatarsal involvement, does not warrant the assignment of
even a compensable disability rating. See Diagnostic Codes
5171 and 5172. Consequently, where, as here, the veteran's
foot disability causees no more disabling symptoms than
described above, a rating in excess of 10 percent is not
warranted under the most appropriate rating criteria for the
disability which are contained in Diagnostic Code 5284.
Furthermore, functional loss attributable to pain on use has
been considered in arriving at the current assessment. See
38 C.F.R. §§ 4.40, 4.45, 4.59 (1999); Johnson v. Brown, 9
Vet. App. 7, 11 (1996); DeLuca v. Brown, 8 Vet. App. 202,
206-207 (1995). Given that a rating on account of pain must
be supported by adequate pathology as shown on examination,
and because such supporting pathology was not shown in this
case, the Board finds that the 10 percent rating currently
assigned adequately compensates the veteran for his
complaints of pain.
Based on any argument that the veteran's pain interferes with
his ability to perform a job, the Board has given
consideration to the potential application of 38 C.F.R. §
3.321(b)(1) (1999). Although the veteran has described his
foot pain as being severe, the evidence does not show an
exceptional or unusual disability picture as would render
impractical the application of the regular schedular rating
standards. See 38 C.F.R. § 3.321 (1999). The current
evidence of record does not demonstrate that his left great
toe difficulties have resulted in frequent periods of
hospitalization or in marked interference with employment.
Regarding any contention that his service-connected
disability has an adverse effect on his employment, it bears
emphasis that the schedular rating criteria are designed to
take such factors into account. The schedule is intended to
compensate for average impairment in earning capacity
resulting from service-connected disability in civil
occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of
disability specified [in the rating schedule] are considered
adequate to compensate for considerable loss of working time
from exacerbations or illnesses proportionate to the severity
of the several grades of disability." 38 C.F.R. § 4.1
(1999). Therefore, given the lack of evidence showing
unusual disability not contemplated by the rating schedule,
the Board concludes that a remand to the RO for referral of
this issue to the VA Central Office for consideration of an
extraschedular evaluation is not warranted.
The Board, in reaching the conclusions above, has considered
the veteran's arguments as set forth in written statements to
the RO. However, while a lay witness can testify as to the
visible symptoms or manifestations of a disease or
disability, his belief as to its current severity is not
probative evidence because only someone qualified by
knowledge, training, expertise, skill, or education, which
the veteran is not shown to possess, must provide evidence
requiring medical knowledge. See Bostain v. West, 11 Vet.
App. 124 (1998); Espiritu v. Derwinski, 2 Vet. App. 492,
(1992); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).
Finally, the Board does not find the evidence to be so evenly
balanced that there is doubt as to any material issue
regarding the matter of an increased rating for the service-
connected residuals of chip fracture of the left great toe.
The preponderance of the evidence is clearly against the
claim. 38 U.S.C.A. § 5107.
ORDER
An increased rating for residuals of chip fracture of the
left great toe is denied.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals